Liberman v. Gelstein

In Liberman v. Gelstein, 80 N.Y.2d 429 (1992), the Court of Appeals reaffirmed the rule that defamation claims between private individuals are not actionable unless the claimant suffers special damages. The Court further adopted the principle that "special damages contemplate 'the loss of something having economic or pecuniary value'" The contemplated loss, in a defamation action, "must flow directly from the injury to reputation caused by the defamation, not from the effects of defamation." Matherson v. Marchello, 100 A.D.2d 233, 235, 473 N.Y.S.2d 998 (2nd Dept. 1984). Notwithstanding the general rule, that absent special damages, there is no cause of action for defamation, the Court recognized exceptions, sometimes referred to as constituting defamation per se, and which "con-sist of statements: (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease, or; (iv) imputing unchastity to a woman..." (Liberman v. Gelstein, supra, p. 435.) The Court of Appeals noted that: Not every imputation of unlawful behavior, however, is slanderous per se. "With the extension of criminal punishment to many minor offenses, it was obviously necessary to make some distinction as to the character of the crime, since a charge of a traffic violation, for example, would not exclude a person from society, and today would do little, if any, harm to his or her reputation at all" (Prosser 112, at 789). Thus, the law distinguishes between serious and relatively minor offenses, and only statements re-garding the former are actionable without proof of damage (see, Restatement 571, comment g list of crimes actionable as per se slander includes murder, burglary, larceny, arson, rape, kidnaping). In that action, the plaintiff therein alleged that the defendant had publicly stated that he "threw a punch at him . . . screamed at his wife and daughter . . . called his daughter a slut and threatened to kill him and his family." Id. at 433. The Court of Appeals held that, even if those statements were not rejected by the listeners as hyperbole, absent proof of damages, the statements were not actionable because they did not constitute slander per se, as they only alleged the "relatively minor offence" of harassment. Id. at 436.